BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE…greentribunal.gov.in/Writereaddata/Downloads/53-2015(WZ)OA-JUD-09... · before the national green tribunal (western zone) bench,

1 (J) Application No.53/2015(WZ)

BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) BENCH, PUNE

APPLICATION NO.53/2015(WZ) CORAM:

Hon’ble Shri Justice V.R. Kingaonkar (Judicial Member)

Hon’ble Dr. Ajay A. Deshpande (Expert Member)

B E T W E E N:

Mr. Vivek Sheshrao Dhakne, Age 36 years, Occupation : Service, R/at 6, Pagariya Colony, Station Road, Aurangabad – 431 001.

……Applicant

A N D

1. Maharashtra Tourism

Development Corporation, Railway Station Road, Bansilal Nagar Area, Aurangabad-431 001.

2. Mr. Vishal Shravan Ingale,

Age : Adult, Occupation : Business, R/at Post Shivani, Taluka Akola, Dist. Akola. And MTDC Resort, Railway Station Road, Bansilal Nagar Area, Aurangabad – 431 001.


3. Maharashtra Pollution Control Board, Paryavaran Bhavan, A-4/1, MIDC Area, Chikalthana, Near Seth Nandlal Dhoot Hospital, Jalna Road, Aurangabad – 431 001.

4. The Commissioner,

Aurangabad Municipal Corporation, Aurangabad-431 001.

5. The Commissioner of Police, Mill Corner, Aurangabad-431

001. 6. The State of Maharashtra,

Through its Chief Secretary, 3rd Floor Mantralaya, Mumbai-32.

…..Respondents Counsel for Applicant : Mr. Asim Sarode Adv. & Associates.

Counsel for Respondents : Vaishali Chavan, Regional Manager, Pune for Respondent

No.1

Mr. A.D. Shinde Adv. for Respondent No.2

Ms. Supriya Dangare Adv. for Respondent No.3

Mr. O.C. Sirsat, Legal Advisor, Mr. J.M. Murkute Adv. for

Respondent No.4

Date: December 9th, 2015


ORAL JUDGMENT 1. By this Application, the Applicant has raised

substantial issue relating to noise pollution, ultimately

degrading environment, within premises of MTDC

(Maharashtra Tourism Department Corporation). The

Maharashtra Tourism Department Corporation will be

referred hereinafter as “MTDC”. It is case of the Applicant

is that he resides in proximity of the MTDC and has to

suffer noise pollution created during the course of

ceremonies like marriages, reception parties, birthday

parties, etc organized at the lawn of the MTDC, from time

to time which are let out by MTDC or for use of temporary

occupants, licensees with consent of the MTDC office.

2. The Applicant says that since long many years

the residents are facing intense noise pollution in the area

which aggravates annoyance, irritation and disturbance

in the normal life of the public members notwithstanding

the fact that there is a school within 100 metres distance

from the MTDC and therefore, noise pollution within the

silence zone ought not to be permitted. The school called

Nutan Vidyalaya is a medium primary school and the

students are disturbed due to high decibel noise created

during the morning session of the school hours due to

parties organized at the lawn of the MTDC. The MTDC

has no authority to permit the occupants to give the lawn


or any other area for use of the reception parties,

marriage parties or any such activities involving likelihood

of noise pollution. The unbearable and uncontrolled

illegal activities of the MTDC give rise to illegal noise

pollution which ought to be controlled by the authority,

namely, Pollution Control Board and the Police

concerned. Though, complaints were made yet no due

cognizance was taken and the unbearable noise was

being created within the premises of the MTDC since

long. Thus, the unbearable noise is the reason for

submission of the Application and moreover, probable

future continuation of the noise pollution on the basis of

the precautionary principle is also one of the ground on

which the Applicant relies. Consequently, the Applicant

seeks mandatory injunction against the MTDC to stop

giving any permission for use of the premises to allow the

marriage parties or other reception parties, etc in which

noise is created which causes disturbance to nearby

residents and further more penalty of Rs.1,00,000/- is

also sought to be imposed for remedial measures.

3. MTDC denied causing of noise pollution by itself

or the licensee. According to the MTDC, the premises is

given to the licensee for a period of 10 years from the date

of execution of the agreement in order to manage the

Resort which is meant for tourists. The purpose, in fact is


to provide comfort, food and other amenities to the

tourists who flock in Aurangabad to visit nearby historical

places like Ellora and Ajanta including other some places

worth visiting. The tourists, who occupy the premises for

short duration, normally do not have intention to use the

lawn for reception, marriage functions or other such

activities and it is very uncommon that the noise

pollution is generated within the MTDC area. Therefore,

the MTDC sought dismissal of the Application.

4. The stand of concessionaire/licensee is

identical. It is stated that the tourists will not normally

occupy lawn because for short time it is allowed to be

used. It is contended that the lawn is not separately

leased-out nor any amount is collected from the person,

who is not a tourist, for the use of the lawn. It is also

contended that there is no permission to use premises of

the lawn to organize parties, reception and like activities

and in any case, no noise exceeding the permissible

decibel is generated due to such activities. It is denied

that the school students or the devotees for nearby temple

have faced any disturbance due to the activities held

within the premises of the MTDC. The licensee

(contractor) of the MTDC, therefore, emphatically denied

all the material averments of the Application and

submitted that the allegations of the Applicant regarding


noise pollution are illusory, unfound and unsustainable.

In this issue of the matter, the licensee (contractor)

sought dismissal of the Application.

5. The reply affidavit of Respondent No.5 is filed

through Ms. Mayuri Purushottam Pawar, Police Sub

Inspector, Kranti Chowk Police Station, Aurangabad. Her

affidavit discloses that relief of declaration sought against

MTDC is in the form of injunction to which the Police

authorities have nothing to do. It is denied that high

decibel noise is allowed to be used within the premises of

MTDC at any functions. It is further submitted that on

January 22nd, 2014 DCP, Zone-I received complaint of the

Applicant which was inquired into. That complaint

Application was duly investigated. The Police Sub-

Inspector however, admits that MTDC Resort is situated

within the residential area and the programmes

conducted in the MTDC areas, if found to be illegal, will

be duly controlled and proper action will be taken against

the defaulter/polluter.

6. We have heard learned Advocates for the parties.

We have also gone through the entire record. The

Municipal Corporation has placed on record the map

which shows that minimum distance between the MTDC

and the Nutan Vidyalaya is about 60 metres. However,

the actual distance shown in the maps appears to have


been alleged by the MTDC/contractor is shown 100

metres. Thus, the MTDC/contractor also disputes

correctness of the map which is authenticated by

Municipal Corporation. The map is submitted by Shri

Ramesh Pawar who is Additional Commissioner at

Municipal Corporation, Aurangabad.

7. The points which are required to be thrashed

out and addressed are as follows:-

(i) Whether it is proved that the use of lawn in

the MTDC leads to noise pollution from time to

time?

(ii) Whether it is proved that the noise pollution

requires to be controlled in view of Section 20 of the

National Green Tribunal Act, 2010 on the basis of

“precautionary principle” and probability of future

continuity of noise pollution?

(iii) Whether the stand taken by the Police

authority is acceptable and proper?

(iv) Whether the Pollution Control Board has

failed to take proper care of the complaints made by

the Applicant, in case the pollution at the MTDC

lawn was noticed and was brought to its notice by

the Applicant, who had purchased the noise

measurement meter by which decibels were

recorded by him?


(v) Whether the MTDC has any authority, in the

eyes of law to allow the tourists to use the annex

lawn for use of reception, marriage or other

programmes?

(vi) Whether legal consent of the Pollution

Control Board for renting of the hotel activity by

MTDC including use of sound amplifying machinery

and other activities is necessary?

8. Before we proceed to deal with the factual

matrix, it would be proper to consider the legal issues as

regards the meaning of “Silence zone” within the

parameters of the Noise Pollution (Regulation and

Control) Rules, 2000. The explanation of Silence zone is

particularly related to zoning of city area or township

under the Noise Pollution (Regulation and Control) Rules,

2000 as per the Schedule (E) under Regulation 3

appended thereto. The particular definition is brought

into effect on November 22nd, 2000 as –

“Silence zone is an area comprising not less

than 100 metres around hospitals,

educational institutions, courts, religious

places or any other areas which is declared

as such by the competent authority.”

The definition of ambient air quality standards and

restrictions in the use of the timing is also ensued in the

Schedule appended to the said Rules. Silence zone is


basically an area comprising not less than 100 metres

around hospitals, educational institutions, courts or

other places which are declared as such by the competent

authority, including religious places. Thus, as per the

Rules, 100 metres minimum distance is the criteria which

is set out to determine Silence zone from the religious

place, institutional areas of education, courts and other

places which are declared as such by the competent

authority. Obviously, the Silence zone is not given any

restricted meaning under the Rules but it is a zoning

allowed to be carried out by the competent authority

irrespective of existence of location of a religious place,

educational institute, hospitals or courts. The above four

places are considered as the places from which Silence

zone is to be maintained under the Rules irrespective of

such declaration by the competent authority.

9. The map placed on record is an authenticated

Municipal Corporation map. The communication

accompanied by the map shows that the education

institute by name Nutan Vidyalaya is of 60 metres from

the Holiday Camp. It follows that the area of MTDC is

within the Silence zone and naturally it must fall within

domain of Noise Pollution (Regulation and Control) Rules,

2000 as stated above. The MTDC cannot disregard the


Rules under the Schedule appended to the Noise Pollution

(Regulation and Control) Rules, 2000.

10. It is worthwhile to mention that in Application

No.34/2011 decided before the National Green Tribunal,

Principal Bench, New Delhi in the case of “Supreme Court

Group Housing Society and another Vs. All India

Panchayat Parishad and others”, the Principal Bench gave

certain directions as regards actions which are required

to be taken by the authorities. We do not wish to set out

those actions and borrow the same for the present

purpose. We only refer it to the present case in order to

demonstrate that the Principal Bench of National Green

Tribunal also in a similar case held that pollution being

wrongful contamination of the environment which causes

material injury to right of an individual, noise can well be

regarded as a pollutant when high decibels noise is

caused. The high decibels noise may have ill-effect on the

health of a person. It may also effects the passersby and

patients admitted in the hospitals. The intention of laws

related to pollution is to ensure abatement of pollution

not in respect of only air and water but of any kind of

pollution. The pollution is a generic term used under the

Environment (Protection) Act which is an umbrella Act.

The noise pollution, particularly stated, causes ill-effect

on the social life, peaceful and dignified life to which a


person is entitled under the Article 21 of the Constitution.

Any such constitution right cannot be trampled by

extraneous forces including the noise pollution.

11. Now, it is not necessary to consider each and

every issue separately but we may make it very clear that

the agreement between MTDC and the licensee

(contractor) clearly shows that it was agreed between

them that the licensee will not use the Resort for any

other purposes than to make available accommodation to

the tourists. The terms of the agreement show that the

purpose of the contract is chiefly to provide food and

beverages in the Resort. The MTDC intended to provide a

comfortable stay and arrangement of catering of services

of like food, beverages to the occupiers of the rooms to

whom it was to be rented out by the contractor. The

MTDC received compensation for use of the premises. The

location of the MTDC is admittedly in the proximity of

Railway Station in order to facilitate use of the Resort to

the tourists who would arrive/travel by railways (train).

Thus, the MTDC aimed to provide the facility to the

tourists who could pay for the amenities available at the

Resort.

12. Terms of the agreement of license categorically

show that the licensee was not permitted to use the

premises for any other purposes like holding of


conferences, meetings, functions at mutually agreeable

charges that too only after giving the licensee sufficient

advance notice in writing of the licensor’s intention of

such temporary use. Even for such purposes, the parties,

namely MTDC and the contractor agreed that the use by

the contractor which was to be permitted to the third

party, namely the occupier shall not exceed 15 days in

one year. By no stretch of imagination, this term under

the license/agreement did never allow use of the premises

for holding of functions like marriages, reception and

birthday parties or like parties which could generate noise

and affect its nearby areas. The relevant clause of the

agreement may be reproduced for ready reference:-

“(l) ……….. Provided that the Licensor shall

have the right to use the said Resort only for

short duration for purposes of holding

conferences, meetings, functions at mutually

agreeable charges and that too only after

giving to the Licensee sufficient advance

notice in writing to the Licensor’s intention of

such temporary use. Such use shall not

exceed 15 days in any one year.”

Needless to say, use of the premises/lawn of the MTDC

could not be leased-out/permitted to any third party by

the licensee for holding of marriage/reception/birthday

parties or light functions. The real dispute which was

raised by Respondent No.1 in paragraph No.10 of the


written affidavit of Vaishali Chavan was that the use of

loudspeakers, firecrackers, music bands and DJ etc. was

not allowed to be used beyond permissible limit as to

when such functions were held. It is further stated that

the basic purpose of Respondent No.1 is to promote

tourism and Respondent No.1 always acted within the

framework of agreement dated May 9th, 2007. The show

cause notice was issued by Respondent No.1 (MTDC) to

Respondent No.2 regarding breaches of the terms of the

agreement but the same were duly replied on May 20th,

2015 and thereafter, the Respondent No.1 did receive a

satisfactory reply from Respondent No.2 and therefore, the

cause of action against Respondent No.1 does not arise.

13. The main contesting Respondent in this case is

Respondent No.2. He filed reply affidavit dated August

17th, 2015 alleging that the Applicant has made baseless

and vague allegations in the Application. He contended

that the Application is barred by limitation as the

Application is not filed within the prescribed period of

limitation and because of the fact that no other complaint

is received in the context of the alleged noise pollution.

Secondly, the contention of Respondent No.2 is that the

Applicant made false complaint against him to the Police

and Municipal Authorities which was found to be untrue.


According to the Respondent No.2 it is specifically alleged

as below:-

“10. ……. as per the policy of M.T.D.C., it

can permit for providing the accommodation

of resort along with the permission to use the

premises for wedding under the head

“Wedding Tourism”. I say that, therefore, I

am using the premises of the respondent

No.1 strictly in accordance with the

provisions of law, rules and regulations and

terms of license. I say that, whenever under

the head wedding tourism, the tourist who

approached me I immediately get the form

filled in from all concerned tourists in which

there is clause by virtue of which the said

tourist is supposed to obtain all sorts of

permission including the permission for using

brass band, so also firing crackers, etc. and

after the said tourist obtains necessary

permission from the concerned police

authority for the purpose of brass band and

for firing crackers, then and then only I am

providing the premises of the respondent

No.1 to such tourists………..”

Not only he collectively attached copies of said

permissions (Exhibit R-1) along with the written affidavit,

he is candid enough in admitting that he allowed use of

the premises for the activities like marriages, receptions

including use of band etc. as to when Police permitted

use of DJ sets, bands and other instruments. Perusal of


the copies of the Applications and permissions go to show

that so-called tourists were using the premises for more

than 15 days, though the activity of marriage may for

single day. The Police also granted permissions for use of

DJ sets/bands as per the norms as for the noise rules.

The Police however, allowed using of the equipments like

DJ sets and the loud speakers during permissible hours.

14. Coming to the role of Police authorities

(Respondent No.5), it is rather reprehensible to see as to

how response is given to a complaint made by common

person or even a person who may be influential. The

Applicant appears to have filed a complaint to the Police

on various occasions. For example, he filed a complaint

dated January 21st, 2014 in which he stated that there

was nuisance due to noise pollution and senior inmates

and residents of Pagaria colony made compliant like

himself. He forwarded that complaint to the Police,

Inspector Kranti Chowk, Police Station Aurangabad. The

said complaint dated January 22nd, 2014 was apparently

directed to be inquired by the D.C.P. Zone I and was

forwarded to the concerned Police Station and report of

the Police Inspector, Police Station Kranti Chowk was

directed to be submitted to the said office. What was the

inquiry held? The first report dated February 14th, 2014

shows that Police investigated the fact that the area falls


within the Pagaria residential colony. This was never the

question which needed any investigation. The Police

made inquiry with 17 Applicants and about what kind of

questions were asked to them? These 17 Applicants were

asked by the Police of higher rank that at what time the

noise pollution causes nuisance and when they have

measured the sound decibels, by which instrument and

what was the nature of reading. The investigation could

not give any result on this aspect and it is obvious

because how anybody can expect a common person to

regularly keep a watch of such activities and will measure

the sound decibels. The Police informed that on February

20th, 2014 and prior to that there was no programme in

MTDC and therefore, sound decibels could not be

measured. However, sound decibels measured during the

certain period when the functions were organized appears

to have not been measured with the help of Pollution

Control Board, though the local Police station was

specifically directed to monitor the noise levels, as per the

permission given by the higher Police officials.

15. We are sorry to say that the complaints of

Applicant were mishandled by the Police authorities and

the Pollution Control Board also failed to duly exercise its

authority to examine the issue. Nay, Pollution Control

Board Officer (Respondent No. 3) did not even take care


to see as to whether the MTDC was required to obtain

consent to establish STP and other facilities by taking

due permission of the Pollution Control Board. The

complaints were just forwarded to Municipal Corporation

and Police without any investigation. Perusal of Section

25 of the Water (Prevention and Control of Pollution) Act,

1974 clarifies the legal position. For clarification of the

understanding we may quote the provision itself:

“25. Restriction on new outlets and new discharges. – [(1) Subject to the provisions of

this section, no person shall, without the

previous consent of the State Board, -

(a) establish or take any steps to establish

any industry, operation or process, or any

treatment and disposal system or any

extension or addition thereto, which is likely

to discharge sewage or trade effluent into a

stream or well or sewer or on land (such

discharge being hereafter in this section

referred to as discharge of sewage); or

(b) bring into use any new or altered outlet

for the discharge of sewage; or

(c) begin to make any new discharge of

sewage:”

16. The mandate of the pollution law is therefore,

breached by the authorities as well as the licensee

(contractor). It is the stand of the licensee (contractor)

that under the terms of the contract he was entitled to


allow the use of the premises by the tourists for wedding

parties. We are surprised and for the first time came

across the term “Wedding Tourism” as used in paragraph

No.10 of the written affidavit filed by Respondent No.2,

which is alien to the law of the terms of the agreement

between Respondent No.1 and 2. Though Respondent

No.2 claims that it is the policy of MTDC to promote such

“Wedding Tourism”, no such policy is placed on record.

17. Under these circumstances, there is no escape

from the conclusion that the lawn was being given for

illegal activities like wedding ceremonies/reception, etc.

and that the use of DJ sets/bands and loud speakers in

the area, obviously, gave rise to the noise which went

beyond the permissible limit. The Applicant himself had

purchased the equipment to measure the sound decibels

and used to make complaints on the basis of the sound

decibels which he had measured with the use of the

equipment. The Pollution Control Board did not take care

to verify his complaint nor the Police took any serious

view of the complaints and the Municipal Corporation

was a mute spectator of his complaint. The licensee

(contractor) assumes that whatever activities he was

doing were permissible under the terms of the agreement

and his stand was supported by Respondent No.1

(MTDC). Thus, the authorities themselves are active


participants to the noise pollution in the area and are

also likely to cause further environmental degradation

and ought to be penalized on “Polluter Pay Principle”

basis because of the principle underlying in Section 20 of

the National Green Tribunal Act, 2010 which also

envisages “precautionary principle”. We must give

direction that henceforth MTDC not only at Aurangabad

but elsewhere will stop such illegal activities and

particularly so-called “Wedding Tourism” which concept

is likely to be rather radically imbibed by other

institutions. Though, the Respondent No.2 is at fault yet

we do not fully blame Respondent No.2 because he was

given understanding that whatever he was doing was

under the terms of the agreement and therefore, his

contribution to the penalty for remedial purpose would be

the same as like that of the authorities.

18. From total of the aforesaid discussion, the

Application deserves to be allowed and is accordingly

allowed. We direct as follows:-

(i) The Respondents shall cumulatively deposit an

amount of Rs.5,00,000/- (Rupees Five Lakhs

only) in the account of the Collector,

Aurangabad in two equal installments, which

shall be paid within 04 (four) months. They


shall also pay an amount of Rs.5000/- each to

the Applicant towards cost of the litigation.

(ii) The amount deposited with the Collector,

Aurangabad shall be utilized for improvement of

the environment such as awareness about noise

pollution, particularly in schools, gardening, if

appropriate land is available or in the forest

land, if the Forest Officer is so agreeable, as per

Rule 36 read with 37 of the National Green

Tribunal (Practices and Procedure) Rules, 2011.

….…………….………………., JM (Justice V. R. Kingaonkar)

…...….…….…………………….,EM (Dr. Ajay.A. Deshpande) PUNE Date : 9th December, 2015. mk

Documents

BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE…greentribunal.gov.in/Writereaddata/Downloads/53-2015(WZ)OA-JUD-09... · before the national green tribunal (western zone) bench,